Our vaporous religious liberty

When the Supreme Court pulled a right to same-sex marriage out of the Constitutional hat in Obergefell v. Hodges, the justices also performed a disappearing act with the First Amendment’s Free Exercise Clause.

In his 5-4 decision, Justice Anthony Kennedy reassures religious Americans their liberties are safe. They “may continue to advocate” against same-sex marriage. The First Amendment, he adds, guarantees “religious organizations and persons” may “teach the principles” of their faith pertaining to family structure.

We didn’t need post-opinion commentary to see how these assurances are actually a death sentence for religious liberty outside the worship service. In his dissent, Chief Justice John Roberts puts believers on alert.

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. … Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Justice Clarence Thomas signals the same alarm. He may be providing grounds for a future court to blunt the illiberal force of the decision when he writes that the majority “indicates a misunderstanding of religious liberty in our nation’s tradition.” But they do no such thing. Thomas is dissenting from the learned and considered views of a Supreme Court majority, not grading an undergraduate Con Law paper.

It is not by a slip of the pen that Kennedy defended the advocacy of religious belief to the exclusion of its exercise. He wrote knowing the minority’s concerns. So America may justly read his words as indicating that, yes, it is open season on anyone whose conduct reveals anything less than full advocacy of “marriage equality,” regardless of religiously informed conscience in the matter.

Why was Kennedy’s religious liberty passage even necessary given the First Amendment protections? Did he feel he needed to bolster them or was he signaling their coming contraction with a view to bolstering this great leap forward in social progress? The First Amendment shouldn’t need defending, and yet now it does. For this reason, there’s a bill before Congress called the First Amendment Defense Act … something like a castle of straw to defend against a dragon.

To make matters worse, in Burwell v. King, the Obamacare decision the previous day, Roberts wrote that words do not mean what they plainly say. “State” can mean a state or the federal government. Never mind what the law says. We all know what it should say. The First Amendment is also a written text. But if a text can mean whatever an imaginative justice wants it to mean, it has no meaning. And if words don’t mean anything then, effectively, we have no Constitution.

Our liberties have come to depend on the generous feelings of a majority of nine philosopher kings and queens. But the church’s defender is a greater King. The political right to live out our Christian beliefs in peace is a costly and precious heritage. At the very least, love of neighbor calls for a vigorous defense of that heritage. But Christians should prepare for more prayer, suffering, and choice between earthly and heavenly citizenships.